Trial after arbitration

[bluesman]

Dear Soc,

I've done some research based on your recent advice to me after losing spectacularly at my arbitration hearing. The attorney states I owe her a bunch of money while I say I don't because she botched my custody case.

As I interpret CA code, it appears that I can request a 'trial after arbitration' simply by filing a civil action that requests said trail. I don't see anything saying I must state that the issue is malpractice, negligence or any other characterization I could use.

The code sections I'm referring to are:

Section 6204(c) found here - http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=36542017656+2+0+0&WAISaction=retrieve

and

Sections 307-309 found here and referenced by the above section- http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=307-309


1. Am I correct in assuming that I only need to request a 'trial after arbitration' and I do not need to specifically raise a specific legal concept such as malpractice or negligence?

2. On my pleading, do I simply state Pro Se?

3. What court should I file this civil complaint in when the subject matter of my case in which the disputed fees are concerned is family law

Thanks

[socrateaser]

>1. Am I correct in assuming that I only need to request a
>'trial after arbitration' and I do not need to specifically
>raise a specific legal concept such as malpractice or
>negligence?

No. That will result in the court simply considering the statutory factors -- and you will lose.

You just file a civil suit against the attorney. If you file within 30 days, then the arbitration is null and void.

As to what your suit will allege, I don't know, because you haven't told me exactly what the attorney did or did not do.

If I were you, I'd probably be headed to small claims court, because in regular civil court, you're gonna get slaughtered. I'm saying this, because the questions that you're asking demonstrate to me that you don't really understand enough about the law in order to represent yourself successfully

I would sue the attorney in the county courthouse that is farthest from the attorney's office. You want to be where that attorney doesn't routine practice. That way, he/she won't be able to take advantage of knowing the judges.

This is a civil suit, so it has nothing to do with family law. You can file at any of the county courthouses EXCEPT Lamoreaux.

[bluesman]

Well, I know you're not here to decide my case so I don't want to give you more details that you want.

The attorney gave me bad advice that I have come to learn probably contributed to my kids being moved away over 2000 miles. We're talking basic bad strategy like stipulating to a visitation schedule before our first OSC even though it was not what I wanted. The attorney reasoned that it would appear to the judge like we want to cooperate and we could gradually get me more time with the kids.

At trial with a different judge, the judge stated that my stipulation to the iniitial custody agreement showed that I was content with what we had agreed to. My current attorney - very competent, by the way - told me that was the possibly the biggest mistake I could have made. He almost fell out of his chair when I told him her strategy. This is just one example.

I should also tell you that I really don't expect to win if I file a civil complaint. That doesn't mean I don't think I'm right, it just means I don't think the court will do the right thing. After spending almost $100K only to lose my kids when I had a custody evaluation that said I'm a great dad and they shouldn't be moved away, I hope you'll forgive me if I don't have much faith in our justice system.

The matter exceeds $5,000 so I think small claims is out. The attorney is in Beverly Hills and had not practiced at Lamoreaux so Santa Ana will probably do.

In all likelihood, I will be filing bankruptcy in the end, maybe even pre judgement if I file this civil action. Filing this civil suit will give me more time to strategize at the very least.

1. So based on this information, what do I allege in my civil complaint?

2. She is the one claiming I owe her money so what am I asking the court for and what's the proper verbiage to use?

Thanks

[DecentDad]

Hi Soc,

Recall that I signed a retainer contract that said all disputes (including theories on malpractice) must go through binding arbitration.

I've noticed language and would appreciate you letting me know if I interpret it correctly:

--------------
Bus. Prof. Code 6200...
  (b) This article shall not apply to any of the following...
     (2) Claims for affirmative relief against the attorney for damages or otherwise based upon alleged malpractice or professional misconduct, except as provided in subdivision (a) of Section 6203.
-------------

If my attorney brings action against me (or initiates arbitration) in attempt to recover fees, and I have a cross-complaint that I suffered injury (e.g., his fees, higher CS, higher childcare) due to malpractice, would I suddenly be open to file a complaint in court for that affirmative relief?

Thanks,
DD

[socrateaser]

>If my attorney brings action against me (or initiates
>arbitration) in attempt to recover fees, and I have a
>cross-complaint that I suffered injury (e.g., his fees, higher
>CS, higher childcare) due to malpractice, would I suddenly be
>open to file a complaint in court for that affirmative
>relief?

Your contract is for "binding" arbitration, which is not the case with bluesman. So, if you want to initiate any kind of action, it must be resolved in arbitration. Bluesman can void the non-binding arbitration by filing suit in court within 30 days.

[bluesman]

>Well, I know you're not here to decide my case so I don't
>want to give you more details that you want.
>
>The attorney gave me bad advice that I have come to learn
>probably contributed to my kids being moved away over 2000
>miles. We're talking basic bad strategy like stipulating to a
>visitation schedule before our first OSC even though it was
>not what I wanted. The attorney reasoned that it would appear
>to the judge like we want to cooperate and we could gradually
>get me more time with the kids.
>
>At trial with a different judge, the judge stated that my
>stipulation to the iniitial custody agreement showed that I
>was content with what we had agreed to. My current attorney -
>very competent, by the way - told me that was the possibly the
>biggest mistake I could have made. He almost fell out of his
>chair when I told him her strategy. This is just one example.
>
>I should also tell you that I really don't expect to win if I
>file a civil complaint. That doesn't mean I don't think I'm
>right, it just means I don't think the court will do the right
>thing. After spending almost $100K only to lose my kids when I
>had a custody evaluation that said I'm a great dad and they
>shouldn't be moved away, I hope you'll forgive me if I don't
>have much faith in our justice system.
>
>The matter exceeds $5,000 so I think small claims is out. The
>attorney is in Beverly Hills and had not practiced at
>Lamoreaux so Santa Ana will probably do.
>
>In all likelihood, I will be filing bankruptcy in the end,
>maybe even pre judgement if I file this civil action. Filing
>this civil suit will give me more time to strategize at the
>very least.
>
>1. So based on this information, what do I allege in my civil
>complaint?
>
>2. She is the one claiming I owe her money so what am I asking
>the court for and what's the proper verbiage to use?
>
>Thanks

Looks like my thread was almost hijacked there. So what do you think, Soc?

[DecentDad]

.

[bluesman]

>Looks like my thread was almost hijacked there. So what do you
>think, Soc?


Soc? Did I say something to offend?

[socrateaser]

>1. So based on this information, what do I allege in my civil
>complaint?

OK, below, is what you will file, along with all the other form stuff required for a civil action (look it up on the Santa Ana court site under forms -- tips on filing a civil action).

You have a tough proof to make. It's not enough to show that the attorney gave you bad advice. You must show that, "but for" the bad advice, the court would have ruled differently. That means you will need a retired judge/commission who is expert in family law, who will review the case and testify that his/her decision would have been different.

This is not easy to do.

If you have other allegations, we can discuss those, but if your case is substantially all about losing custody because of the bad advice, then you'll need to prove that NO reasonable attorney would have made such a recommendation under similar circumstances. I don't have enough facts, nor could you present enough in this forum, to determine whether this ruling is absurd, or whether you're just another angry dad.

And, that doesn't mean I don't emphathize with your situation -- just that the system isn't built to do anything other than maintain the status quo, and you stipulated to creating a status quo adverse to you.

The good news is that you are entitled to a trial by jury. And EVERYONE on that jury is gonna be wanting your attorney to burn, don't cha know? LOL!

Anyway, here's the text of what I'd plead (stuff between () below are notes to you, don't leave them in your final pleading)

1. On ??/??/??, Plaintiff retained the services of Defendant, California Attorney, NAME, Bar #??????, to repretsent Plaintiff in matters including litigation over custody of Plaintiff's minor child (Orange County Superior Court, Case #?????).

2. Defendant recommended that Plaintiff enter into a stipulated temporary custody order, which awarded Plaintiff's child's mother _____ (fill in the blanks).

3. Plaintiff accepted Defendant's recommendation and so stipulated.

4. Custody litigation continued, and Plaintiff expended $_____, on litigation fees and costs.

5. The court in Plaintiff's custody case, found that Plaintiff's stipulated custody order was an admission of what Plaintiff believed was in his child's best interests, and awarded custody in a manner adverse to Plaintiff.

6. Defendant's above-described recommendation, and Plaintiff's subsequent stipulated custody order, undermined Plantiff's case.

7. But for, Defendant's above-described recommendation, the court would not have made a custody order adverse to Plaintiff.

Wherefore, Plaintiff prays for compensatory damages from Defendant, in the amount of $__________ (damages for the injury sustained), and consequential damages in the amount of $_________ (damages flowing naturally from the breach and reasonable foreseeable in advance, i.e., unnecessary litigation costs).

Dated, this _______ day of ________, 2005,


By: _______________
YOURNAME
Plaintiff, Pro Se

[bluesman]

Soc, thanks so much for this.

The retainer I signed was with a firm and I signed it thinking I hired a specific attorney. He immediately turned my case over to another partner in the firm and this second attorney is the one that botched my case.

My primary goal is to end up not owing the firm all of this money they claim I owe. Its never been my intention to get a bunch of my money back especially knowing how difficult that would be. I actually paid them $22K and they say I still owe another $17K, plus interest, etc.

1. Am I filing this complaint against the firm or the attorney that actually represented me?

2. Since realistically I'm not seeking to get money refunded to me - I just don't want to owe them - am I asked for compensetory damages in the amount of $17K to negate the amount they claim I owe.

3. If I decide that I should simply file bankruptcy before a trial happens, what do I need to do to drop the case?

Thanks!